City of South Milwaukee v Todd J. Kester

3-13-2013 Wisconsin:

City of South Milwaukee v Todd J. Kester

Todd J. Kester was convicted of sexually assaulting a child in 2000. In April 2010, Kester moved into a residence in the City of South Milwaukee that was within 1000 feet of an elementary school. The City has an ordinance that prohibits child sex offenders such as Kester from living within 1000 feet of elementary schools. Kester was told by the City that he had to move. Kester refused. The City filed an action in circuit court, asking the court to declare Kester’s residency a public nuisance and to enjoin him from living in the home. The circuit court granted the injunction and ordered Kester to move.

Kester appeals, arguing that his residency should not have been declared a nuisance without an individual determination of his dangerousness, that his right to procedural due process was denied as he was not permitted to show he did not pose a risk of harm to children, that the City’s ordinance is preempted by state law, and that the City’s ordinance as applied to him violates the Double Jeopardy and Ex Post Facto Clauses of the United States and Wisconsin Constitutions. We disagree and affirm the circuit court.

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Article: Court upholds sex offender residency rule

Buss v Harris

5-17-2010 Indiana:

Buss v Harris
No. 52A02-0911-CV-1088.

Edwin G. Buss ("Buss"), Commissioner of the Indiana Department of Correction ("the DOC"), appeals from the trial court's order in an action for declaratory and injunctive relief brought by Michael L. Harris ("Harris"), a former inmate at the Miami Correctional Facility in Miami County, Indiana, requiring the DOC to update the sex offender registry to remove the term "SEX PREDATOR" and the statement "Lifetime Notification" from Harris's offender detail and type on the Indiana Sheriffs' Sex and Violent Offender Registry web site, and determining that Harris's reporting obligation should be for ten years following the date of his release from incarceration.

Buss raises the following consolidated and restated issue for our review: Whether the trial court erred by finding and concluding that Harris should not be listed on the sex offender registry as a sexually violent predator and that Harris's reporting obligation was limited to ten years following the date of his release from incarceration.

We affirm.

... ... ...

If we were to adopt the State's construction of the statutory provisions, an offender could, in theory, have completed his sentence and reporting requirement, yet without notice to him be in violation of lifetime reporting requirements by operation of law due to subsequent amendments to SORA. Nothing before us indicates that the legislature intended such a result.

The State argues that Buss and the DOC were not making the determination that Harris was a sexually violent predator with a lifelong reporting obligation, but were merely notifying Harris of his status and post-release reporting obligations. The State also notes that Indiana Code section 35-38-1-7.5(f)(2) requires the trial court to send notice to the DOC if a person is a sexually violent predator and uses that language to support its contention that it is not claiming authority to make the status and reporting determinations. Yet, the State does not offer a citation to the record establishing that Buss and the DOC received notification from the trial court indicating a change to Harris's status, thus triggering their duty to notify Harris.

We hold that the trial court did not err by finding and concluding that the DOC and Buss were not authorized by statute to make a determination of and change to Harris's status on the sex offender registry. We also reject the State's argument that Harris's status was changed by operation of law under Indiana Code section 35-38-1-7.5(b) and note that the Supreme Court's decision in Jones supports our conclusion. We also hold that the trial court correctly determined that Harris's reporting obligation was for ten years and not a lifelong reporting obligation, as the change to the duration of Harris's reporting obligation would have occurred only by a finding and conclusion that his status had changed. Again, Jones is helpful in reaching that conclusion.

Affirmed.

Miller v Skumanick

3-30-2009 Pennsylvania:

Miller v Skumanick
605 F.Supp.2d 634 (2009)

Before the court is plaintiffs' motion for a temporary restraining order (TRO). Having been briefed and a hearing having been held, the matter is ripe for disposition.

Background
At issue in this case is the practice of "sexting," which has become popular among teenagers in recent years. (Complaint (Doc. 1) (hereinafter "Complt.") at ¶ 7). According to the plaintiffs, this is "the practice of sending or posting sexually suggestive text messages and images, including nude or semi-nude photographs, via cellular telephones or over the Internet." (Id.). Typically, the subject takes a picture of him- or herself with a digital camera or cell phone camera, or asks someone else to take that picture. (Id. at ¶ 8). That picture is stored as a digitized image and then sent via the text-message or photo-send function on a cell phone, transmitted by computer through electronic mail, or posted to an internet website like Facebook or MySpace. (Id. ¶ 9). This practice is widespread among American teenagers; studies show approximately 20% of Americans age 13-19 have done it. (Id. ¶ 10).

Images and Threatened Prosecutions
In October 2008, Tunkhannock, Pennsylvania School District officials confiscated several students' cell phones, examined them and discovered photographs of "scantily clad, semi-nude and nude teenage girls." (Id. at ¶ 12). Many of these girls were enrolled in the district. (Id.). The School District reported that male students had been trading these images over their cell phones. (Id. at ¶ 13).

The School District turned the phones over to Defendant Skumanick, the District Attorney of Wyoming County, Pennsylvania. (Id. at ¶ 13). Skumanick began a criminal investigation. (Id.). In November 2008, Skumanick stated publically to local newspaper reporters and a district assembly at Tunkhannock High School that students who possess inappropriate images of minors could be prosecuted under Pennsylvania law for possessing or distributing child pornography, 18 PENN. STAT. § 6312, or criminal use of a communication facility, 18 PENN. STAT. § 7512. (Id. at ¶ 15). Skumanick pointed out that these charges were felonies that could result in long prison terms and would give even juveniles a permanent record. (Id. at ¶ 16). Defendant contends that if found guilty of these crimes, the three minor plaintiffs would probably be subject to registration as sex offenders under Pennsylvania's Registration of Sexual Offenders Act ("Meghan's Law"), 42 P.S. § 9791, for at least ten years and have their names and pictures displayed on the state's sex-offender website. (Id. at ¶ 17).

... ... ...

The court agrees with the plaintiffs that the public interest would be served by issuing a TRO in this matter as the public interest is on the side of protecting constitutional rights. This factor too supports issuing a TRO.

Conclusion
Upon balancing the TRO factors, we find that each factor weighs in favor of granting the TRO. Accordingly, we will grant the plaintiffs' motion for a temporary restraining order. An appropriate order follows.

ORDER
AND NOW, to wit, this 30th day of March 2009, the plaintiffs' motion for a temporary restraining order (Doc. 2) is hereby GRANTED. The defendant, Wyoming County District Attorney George Skumanick, and his officials, employees, agents and assigns, are hereby ENJOINED from initiating criminal charges against plaintiffs Marissa Miller, Grace Kelly and Nancy Doe for the two photographs at issue. This order shall be effective immediately.

A hearing on plaintiffs' request for a Preliminary Injunction will be held on June 2, 2009. A scheduling order will follow.

Plaintiffs' motion for leave to file the original complaint and proceed under pseudonyms and for a protective order (Doc. 3) is hereby GRANTED.

Plaintiffs' motion to compel the defendant to produce the photographs in question (Doc. 4) is hereby DENIED as moot. The defendant has supplied plaintiffs with the photographs.

Article: 3rd Circuit Panel Mulls if Teen 'Sexting' Is Child Pornography

ACLU of Nevada v Cortex Masto

UPDATE 2-1-2014: This case is NOT OVER see what is happening now in 2014.

UPDATE 9-15-2012: According to a Sep't 2012 ACLU Memo, this 2008 Injunction has been overturned, so we are keeping this here for documentation of what has happened. See ACLU 2012 Memo for more info(also copied below).

10-7-2008 Nevada:

ACLU of Nevada v Cortex Masto
719 F.Supp.2d 1258 (2008)

On September 10, 2008, a hearing was held before Hon. Judge James C. Mahan on Plaintiffs' Motion for Summary Judgment. Appearing for plaintiffs the American Civil Liberties Union and Does 1 through 8 were Margaret McLetchie and Allen Lichtenstein. Robert Langford appeared for Plaintiffs Does A through S. Binu Palal and Kimberly Buchanan appeared for defendants.

Plaintiffs filed their complaint on June 24, 2008, requesting that this court declare A.B. 579 and S.B. 471 unconstitutional and to issue an injunction prohibiting the enforcement of changes to various N.R.S. provisions to be modified by the implementation of A.B. 579 and S.B. 471. Plaintiffs stated several causes of action, including that the laws violated:

(1) Procedural Due Process under the U.S. Constitution;

(2) the Ex Post Facto Clause under the U.S. Constitution;

(3) the Double Jeopardy Clause under the U.S. Constitution;

(4) the Contracts Clause under the U.S. and Nevada Constitutions;

(5) the Separation of Powers under the Nevada Constitution; and

(6) the prohibition against Vague and Ambiguous laws under the U.S. Constitution.

... ... ...

In July of 2007, the Nevada Legislature passed A.B. 579 which mandated that its restrictions, notification provisions, and potential criminal penalties apply retroactively, not just to pedophiles, but to anyone who has committed any offense that involves "any sexual act or sexual conduct with another"—no matter how minor the sexual offense was—and to offenses committed as long ago as July 1, 1956. In July of 2007, the Nevada Legislature also passed S.B. 471, which imposed G.P.S. monitoring and movement and residency restrictions on certain sex offenders. Plaintiffs submitted declarations, uncontroverted by the defendants, making clear that the Parole and Probation Department was applying S.B. 471's provisions retroactively.

Together, A.B. 579 and S.B. 471 redefine who is considered a "sex offender," the way in which sex offenders are classified and monitored, and what restrictions apply to which sex offenders. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological assessments focusing on whether the offenders pose a risk to society and are likely to re-offend. The statutes mandated that sex offenders would henceforth be automatically classified based on one factor, the crime committed. Because of the changed standards, numerous people: (1) whose crimes were committed in the distant past; (2) who have been determined by the state of Nevada to be unlikely to re-offend; and (3) who have complied with the law, attended counseling, and who have not committed additional crimes would be thrown back into the system or be subject to more onerous monitoring and residency requirements.

A.B. 579 and S.B. 471 do not provide any procedural due process protections, leaving even people who believe that they have been miscategorized as sex offenders with no means to challenge the application of A.B. 579 and S.B. 471.
The application of these laws retroactively is the equivalent a new punishment tacked on to the original sentence—sometimes years after the fact—in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contracts clauses of the U.S. and Nevada Constitutions. Moreover, because they do not provide any procedural protections from their retroactive application, A.B. 579 and S.B. 471 violate the Due Process Clause of the U.S. Constitution.

For these reasons, the Court hereby grants Plaintiffs' Motion for Summary Judgment, making the June 30, 2008 Preliminary Injunction enjoining the enforcement of A.B. 579 and S.B. 471 a Permanent Injunction.

IT IS SO ORDERED.

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ACLU Letter (to preserve):

Ninth Circuit Rules on Nevada's Sex Offender Laws

September 10, 2012

The battle over the changing face of laws concerning sex offenders in Nevada seems to have come to an end. The ACLU of Nevada has been working on protecting the rights of convicted offenders since the passage of Assembly Bill 579 and Senate Bill 471 during the 2007 legislative session.

A.B. 579 and S.B. 471 drastically changed how Nevada deals with sex offenders. A.B. 579 retroactively changed the categorization of sex offenders, so regardless of the crime, offenders who committed misdemeanors with any sexual element since July 1, 1956 would fall within the purview of registration and some notification requirements. Many rehabilitated, low risk offenders whom the state of Nevada determined were unlikely to re-offend could be retroactively classified as "high risk" offenders based solely on their conviction. Prior to the enactment of these laws, sex offenders had been individually assessed and classified based on psychological evaluations focusing on whether the offenders pose a risk to society and are likely to re-offend. S.B. 471 prohibited some offenders from “knowingly being” within 500 feet of certain locations, and was also being applied retroactively.

In 2008, the ACLU of Nevada filed suit against the implementation of these laws, and in April 2012, the Ninth Circuit Court of Appeals issued a ruling in the case. The Ninth Circuit upheld A.B. 579 as constitutional, including its retroactive application. The permanent injunction issued by the District Court in 2008 was lifted and A.B. 579 has gone into effect. However, the Ninth Circuit stated that the laws concerning certain residency requirements cannot be applied retroactively, and has upheld the injunction against S.B. 471.

This case was fundamentally about the limits on the power of government to impose sweeping retroactive punishment. The ACLU was concerned that if the Nevada legislature was allowed to impose laws retroactively in this context, it could pass other laws that take effect retroactively, violating the Constitution.

The ACLU continues to monitor and fight against the imposition of laws like these. Even though the outcome of this important case was not completely what we had hoped, it is encouraging to know that our efforts do not go unnoticed and the mission of the ACLU of protecting the rights of all Nevadans continues to be successful.

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Doe v Harris

Now see Doe v Harris 7-1-2013 (California Sup Ctr)

1-11-2013 California:

Doe v Harris (Order Granting Preliminary Injunction) No. C12-5713 TEH.
On Appeal see below:

This matter came before the Court on December 17, 2012, on Plaintiffs' motion for a preliminary injunction. Plaintiffs challenge several provisions of the Californians Against Sexual Exploitation Act ("CASE Act" or "Act") that require registered sex offenders to provide certain information concerning their Internet use to law enforcement. Having carefully considered the parties' written and oral arguments, the Court now GRANTS preliminary injunctive relief for the reasons explained below.

On November 6, 2012, California voters approved the CASE Act, which appeared on the ballot as Proposition 35, with approximately 81% of the vote. Ex. D to Intervenors' Req. for Judicial Notice at 1.1 Plaintiffs John Doe, Jack Roe,2 and the non-profit organization California Reform Sex Offender Laws filed this action on behalf of present and future California sex offender registrants the following day, when the Act was to take effect.3 See Cal. Const. art. II, § 10(a). They contend that California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by the CASE Act, violate Plaintiffs' First Amendment rights to free speech and free association. They further contend that the provisions are void for vagueness under the Fourteenth Amendment.

California's sex offender registration program is governed by California Penal Code section 290 et seq. The CASE Act added the following items to the list of information registrants must provide "upon release from incarceration, placement, commitment, or release on probation":

(4) A list of any and all Internet identifiers established or used by the person.

(5) A list of any and all Internet service providers used by the person.

(6) A statement in writing, signed by the person, acknowledging that the person is required to register and update the information in paragraphs (4) and (5), as required by this chapter.

Cal. Penal Code § 290.015(a). In addition, items (4) and (5) must be reported as part of the annual registration process. Id. § 290.012(a).

The Act defines "Internet service provider" as "a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet," except for any "business, organization, or other entity that provides only telecommunications services, cable services, or video services, or any system operated or services offered by a library or educational institution." Id. § 290.024(a). "Internet identifier" is defined as "an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication." Id. § 290.024(b).

The CASE Act also added a provision that requires registrants to notify law enforcement within 24 hours of any changes in the Internet information subject to registration:

If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice.

Id. § 290.014(b). This section further requires all registrants to "immediately provide" the required information to law enforcement upon the effective date of the Act. Id.

...(Additional facts are long but interesting, should be reviewed), ...

Accordingly, with good cause appearing for the reasons stated in this order, Plaintiffs' motion for a preliminary injunction is GRANTED. IT IS HEREBY ORDERED that:

1. Defendant Kamala Harris and her officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with her, are enjoined from implementing or enforcing California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by the CASE Act.17

2. Defendant Harris shall provide, by personal service or otherwise, actual notice of this order to all law enforcement personnel who are responsible for implementing or enforcing the enjoined statutes or from otherwise collecting registered sex offenders' information. The government shall file a declaration establishing proof of such notice on or before January 28, 2013. Alternatively, the parties may file on or before that date a stipulation and proposed order that local law enforcement will not enforce the enjoined provisions even in the absence of receiving actual notice.

IT IS SO ORDERED.

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On Appeal: No. 09-17362.
We certify to the California Supreme Court the question set forth in Part II of this order. All further proceedings in this case are stayed pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this Court. The parties shall notify the Clerk of this Court within three days after the court accepts or rejects certification, and again within three days if the court renders an opinion. The panel retains jurisdiction over further proceedings.

I
Pursuant to Rule 8.548 of the California Rules of Court, a panel of the United States Court of Appeals for the Ninth Circuit, before which this appeal is pending, certifies to the California Supreme Court a question of law concerning the interpretation of California plea agreements. The decisions of the Courts of Appeal of the State of California provide no controlling precedent regarding the certified question, the answer to which may be determinative of this appeal. We respectfully request that the California Supreme Court answer the certified question presented below. Our phrasing of the issue is not meant to restrict the court's consideration of the case. We agree to follow the answer provided by the California Supreme Court. If the Supreme Court declines certification, we will resolve the issue according to our perception of California law.

II
The question of law to be answered is:
Whether, under California law, the default rule of contract interpretation is

• (a) that the law in effect at the time of a plea agreement binds the parties, or
• (b) that the terms of a plea agreement may be affected by changes in law.

...continued...

Doe v Nebraska

Nebraska Case:

MEMORANDUM AND ORDER 12-21-2012
(Nos. 8:09CV456, 4:10CV3266, 4:10CV3005)

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM AND ORDER 0-17-2012
(Nos. 8:09CV456, 4:10CV3266, 4:10CV3005)

ORDER 7-23-2012
(No. 8:09CV456.)

ORDER 7-13-2012
(No. 8:09CV456.)

MEMORANDUM AND ORDER 6-29-2012
(No. 8:09CV456.)

MEMORANDUM AND ORDER 6-29-2012
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

MEMORANDUM AND ORDER 6-1-2012
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

MEMORANDUM AND ORDER 5-14-2012
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005

ORDER 2-27-2012
No. 8:09CV456.

ORDER 1-10-2012
No. 8:09CV456.

MEMORANDUM AND ORDER 9-19-2011
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005

MEMORANDUM AND ORDER 6-15-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

MEMORANDUM AND ORDER 6-20-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

ORDER 4-25-2011
(No. 8:09CV456.)

MEMORANDUM AND ORDER 4-19-2011
Nos. 8:09CV456, 4:09CV3266, 4:10CV3005.

MEMORANDUM AND ORDER 8-16-2010
734 F.Supp.2d 882 (2010)
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3004, 4:10CV3005.)

MEMORANDUM AND ORDER 1-27-2011
(Nos. 8:09CV456, 4:09CV3266, 4:10CV3005)

Doe v Nebraska 12-30-2009
(No. 8:09CV456.)

This is a very complicated case with many issues, read it if you wish. Accordingly I am posting only what is relevant in this 12-30-2009 decision:

The specific statutes that are challenged by Plaintiffs, and an abbreviated summary of the reasons for the challenge, are set forth below:

Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 40131 amount to the ex post facto imposition of punishment;

Neb. Rev. Stat. § 29-4006 provides for unreasonable searches and seizures;

Neb. Rev. Stat. §§ 29-4009 and 4013 unreasonably eliminate individual assessments to determine the level of community notification and unreasonably impose website notification for all registrants;

Neb. Rev. Stat. § 29-4001.01 employs vague definitions, making the laws susceptible to arbitrary enforcement and inadvertent noncompliance;

Neb. Rev. Stat. § 28-322.05 2 creates a new crime and wrongly criminalizes certain types of speech and infringes upon the right of association; and

Neb. Rev. Stat. §§ 29-4001.01 through 4006, and 4009 through 4013 improperly and retroactively modify the terms and conditions of plea agreements and violate separation of powers doctrine.
(See Filing 1, Complaint at CM/ECF p. 4 n.1.)

IT IS ORDERED that the motion for a preliminary injunction (filing 4) is denied except as provided below:

1. Defendants are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit: (1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).

However, Nebraska went much further and added a "consent to search" and "monitoring" requirement, to wit:

When the person provides any information under subdivision (1)(k) or (s) of this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:

(a) Search of all the computers or electronic communication devices possessed by the person; and

(b) Installation of hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by the person.

Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010).

In addition to the "consent to search" and "monitoring" requirement, Nebraska—and, again, unlike SORNA—has now made it a crime for certain offenders who must register to access certain Internet sites. That is:

(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:

...(Crime codes omitted)...

(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.

Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010).
Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska's registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. SeeSmith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was "free to . . . live . . . as other citizens, with no supervision") (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed "kiddie porn" crimes. In either context, those restrictions are clearly "punishment."


... ... ...

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Earlier Filings:

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MEMORANDUM AND ORDER 12-22-2009
MEMORANDUM AND ORDER 12-21-2009
MEMORANDUM AND ORDER 12-18-2009
MEMORANDUM AND ORDER 12-17-2009

There is more on this case HERE

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PDF 12-30-2009